Citation Nr: 0807333
Decision Date: 03/04/08 Archive Date: 03/12/08
DOCKET NO. 05-25 749 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to an effective date prior to April 24, 2003 for
the assignment of a 70 percent schedular rating for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
A. Barone, Associate Counsel
INTRODUCTION
The veteran had active service from June 1968 to December
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 rating determination
of a Regional Office (RO) of the Department of Veterans
Affairs (VA). A notice of disagreement was received in
November 2004, a statement of the case was issued in June
2005, and a substantive appeal was received in July 2005.
FINDINGS OF FACT
1. The veteran filed a claim for an increased disability
rating for PTSD on January 23, 2002.
2. In an August 2002 rating action, the RO assigned a 50
percent disability rating for PTSD. The veteran was informed
of his appellate rights and did file a notice of
disagreement, but the record contains no received
correspondence to perfect the appeal following proper
issuance of a statement of the case.
3. Correspondence received on March 5, 2004 was accepted as
a new claim for an increased disability rating for PTSD; no
earlier such claim had been received that was not adjudicated
by a prior rating decision.
4. In a September 2004 rating decision, the RO granted
entitlement to a 70 percent rating for PTSD, effective from
April 24, 2003.
5. April 24, 2003 is the earliest date upon which it was
factually ascertainable that an increased rating for PTSD was
warranted, for the period within one year prior to March 5,
2004.
CONCLUSIONS OF LAW
1. The August 2002 RO rating decision became final 60 days
following the August 2003 statement of the case. 38 U.S.C.A.
§ 7105 (West 2002).
2. There is no legal basis for an effective date prior to
April 24, 2003, for the assignment of a 70 percent disability
rating for service-connected PTSD. 38 U.S.C.A. §§ 5107,
5110(a) (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Board acknowledges the Veterans Claims Assistance Act of
2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002). This legislation provides, among other things, for
notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of VCAA.
See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The
intended effect of the regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits, or who attempts to reopen a previously denied
claim.
It appears that the veteran was afforded VCAA notice in April
2004 in connection with his claim of entitlement to an
increased rating for PTSD which led to the effective date
assignment issue currently on appeal. It also appears that
in June 2007 he was furnished specific VCAA notice addressing
the effective date issue which is the subject of this appeal.
The June 2007 letter included notice of how VA determines an
effective date, in accordance with Dingess v. Nicholson, 19
Vet.App. 473, 491 (2006).
To the extent that the content or timing of VCAA notice
regarding the claim for an earlier effective date may be
deficient, the Board finds no prejudice to the veteran.
Indeed, since the issue of entitlement to an earlier
effective date is a downstream issue from the claim of
entitlement to an increased rating, additional VCAA notice is
not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears
that the United States Court of Appeals for Veterans Claims
has also determined that the statutory scheme does not
require another VCAA notice letter in a case such as this,
where the veteran was furnished proper VCAA notice with
regard to the original claim giving rise to the downstream
issue on appeal. See Dingess v. Nicholson, 19 Vet.App. 473,
491 (2006). In any event, the record reflects that the
veteran and his representative have demonstrated actual
knowledge of the applicable criteria for assignment of an
earlier effective date. The veteran's contention is clear
and specific: he contends that his January 23, 2002 claim for
an increased PTSD rating remains open as the veteran alleges
that he perfected an appeal of that decision.
Furthermore, the Board finds that there has been substantial
compliance with the assistance provisions set forth in the
law and regulations. The record as it stands includes
sufficient competent evidence. No additional pertinent
evidence has been identified by the claimant as demonstrating
his contention that he perfected an appeal of the January 23,
2002 claim nor has any other evidence been identified as
relevant to this appeal. Under these circumstances, no
further action is necessary to assist the claimant with this
appeal.
Analysis
The applicable law and regulations concerning effective dates
state that, except as otherwise provided, the effective date
for the assignment of an increased evaluation shall be fixed
in accordance with the facts found, but shall not be earlier
than the date of receipt of the application therefor. 38
U.S.C.A. § 5110; 38 C.F.R. § 3.400.
The applicable statute specifically provides that the
effective date of an award of increased compensation shall be
the earliest date as of which it is factually ascertainable
that an increase in disability had occurred, if an
application is received within one year from such date. 38
U.S.C.A. § 5110(b)(2). However, if the increase became
ascertainable more than one year prior to the date of receipt
of the claim, then the proper effective date would be the
date of the claim. In a case where the increase became
ascertainable after the filing of the claim, then the
effective date would be the date of increase. See generally
Harper v. Brown, 19 Vet.App. 125 (1997).
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by VA. See 38 U.S.C.A.
§ 5101(a); 38 C.F.R. § 3.151.
Any communication or action indicating an intent to apply for
one or more benefits under the laws administered by VA, from
a claimant, his or her duly authorized representative, a
Member of Congress, or some person acting as next friend of a
claimant who is not sui juris may be considered an informal
claim. Such informal claim must identify the benefit sought.
Upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for completion. If received within one year from
the date it was sent to the claimant, it will be considered
filed as of the date of receipt of the informal claim. See
38 C.F.R. § 3.155. A report of examination or
hospitalization which meets the requirements of this section
will be accepted as an informal claim for benefits if the
report relates to a disability which may establish
entitlement. Once a formal claim for pension or compensation
has been allowed or a formal claim for compensation has been
disallowed for the reason that the service-connected
disability is not compensable in degree, receipt of a report
of examination or hospitalization by VA or the uniformed
services will be accepted as an informal claim for benefits.
The date of outpatient or hospital examination or date of
admission to a VA or uniformed services hospital will be
accepted as the date of receipt of a claim. The provisions
of this paragraph apply only when such reports relate to
examination or treatment of a disability for which service-
connection has previously been established or when a claim
specifying the benefit sought is received within one year
from the date of such examination, treatment or hospital
admission. 38 C.F.R. § 3.157.
38 C.F.R. § 3.157 (b)(2), specifically indicates that the
date on which evidence is received from a private physician
or layman is the date which will be used for effective date
purposes.
In this case, the veteran seeks an earlier effective date for
the assignment of a 70 percent rating for his PTSD. A 50
percent disability rating for PTSD was granted in an August
2002 rating decision. The veteran was notified of that
determination by letter in September 2002, and he was advised
of his appellate rights. The appellant filed a notice of
disagreement with this rating in March 2003. A statement of
the case was issued to the veteran in August 2003, and this
mailing included a Form 9 for submission of a substantive
appeal. The August 2003 mailing also included notice that
"You must file your appeal with this office within 60 days
from the date of this letter or within the remainder, if any,
of the one-year period from the date of the letter notifying
you of the action that you have appealed." The letter
explained that "If we do not hear from you within this
period, we will close your case." The record reflects that
the next correspondence received from the veteran following
the issuance of the statement of the case was phone contact
in March 2004; there is no timely substantive appeal of
record to perfect the veteran's appeal of the August 2002
rating decision. The August 2002 rating decision therefore
became final. See generally 38 U.S.C.A. § 7105.
In the March 2004 phone contact, the veteran was noted to
express a desire "to reopen his claim for an increased
[rating] regarding his PTSD." As there was no active claim
for an increased rating for PTSD pending at that time, this
was accepted as a new claim and prompted the RO to again
evaluate the veteran's PTSD for consideration of an increased
disability rating. A September 2004 RO rating decision
assigned an increased disability rating of 70 percent; this
rating was assigned effective from April 24, 2003, the date
that the RO determined was the earliest date by which that
the 70 percent rating was factually ascertainable within the
applicable period.
The veteran, as explained in his July 2005 correspondence, is
seeking entitlement to an effective date earlier than April
24, 2003; the veteran specifies January 23, 2002, as the
correct effective date for his PTSD rating. The veteran
correctly identifies January 23, 2002, as the date upon which
the RO received his claim that resulted in the August 2002
rating decision granting a 50 percent rating for PTSD. The
veteran essentially argues that the August 2002 rating
decision never became final and, thus, the January 23, 2002,
claim remains the relevant open claim for the purposes of
determining the effective date of the 70 percent rating for
PTSD.
However, the Board concludes that there is no legal basis for
assignment of an effective date prior to April 24, 2003 for
the grant of a 70 percent evaluation for PTSD. The record
shows no perfected appeal of the August 2002 rating action;
it became final when the veteran failed to perfect an appeal
of that determination within the applicable 60 day allowance
following the August 2003 statement of the case. Thus, the
case was closed by November 2003. Following the August 2003
statement of the case, the record is silent for any evidence
or statement by the veteran supporting an increased
evaluation of his service-connected PTSD until March 5, 2004.
The veteran has advanced contentions to the effect that he
took the appropriate action to perfect an appeal of the
August 2002 decision, but these contentions are not
consistent with the record. The record contains no
contemporaneous indication that any correspondence was
received from the veteran following the August 2003 statement
of the case, until the March 5, 2004 documented receipt of a
phone call expressing a desire to "reopen" his claim for an
increased rating for PTSD. The Board acknowledges that the
veteran essentially contends that an error on the part of the
RO is responsible for the fact that the record does not show
that a substantive appeal was filed in connection with the
August 2003 statement of the case. The United States Court
of Appeals for Veterans Claims (Court) has held that in the
absence of clear evidence to the contrary, the law presumes
the regularity of the government's administrative processes.
Jones v. West, 12 Vet.App. 98, 100 (1998); Ashley v.
Derwinski, 2 Vet.App. 62, 64-65 (1992). The Court has also
specifically held that a statement by a claimant, standing
alone, is not sufficient to rebut the presumption of
regularity in VA operations. Id.
The veteran has merely argued, in this case, that he filed a
notice of disagreement and he is convinced that he replied to
all subsequent RO correspondence; he has not specifically
detailed any submission of a substantive appeal or offered a
consistent and clear explanation of the events leading to the
claims-folder reflecting that no substantive appeal was
filed. Thus, the Board cannot conclude that the veteran
perfected an appeal of his claim for an increased rating for
PTSD following the August 2003 statement of the case.
The appeal arising from the August 2002 rating decision was
closed by November 2003, prior to the veteran's next
correspondence of record in March 2004; thus the March 2004
correspondence cannot be said to have continued an ongoing
claim. There was no open claim for an increased disability
rating for PTSD at the time of the first March 2004
correspondence from the veteran expressing a desire for such
an increased rating. In light of this, the Board must find
that the September 2004 rating decision which increased the
veteran's PTSD disability rating to 70 percent arose from the
veteran's claim on March 5, 2004, and no earlier.
In assigning an effective date for the 70 percent PTSD
disability rating, any date within one year prior to the
filing of the claim may be assigned if the evidence shows
that it was factually ascertainable that the veteran's PTSD
warranted a 70 percent rating by that date. On this basis,
the RO has already assigned an effective date of April 24,
2003, for the 70 percent PTSD disability rating. Therefore,
the Board need only consider whether it was factually
ascertainable that a 70 percent rating was warranted at any
time during the period between March 5, 2003 (one year prior
to the claim) and April 24, 2003. The Board has reviewed the
evidence of record and has identified the treatment note
dated April 24, 2003 which appears to be the basis of the
RO's assignment of that date as the effective date for the 70
percent PTSD disability rating. However, the Board finds no
other pertinent evidence to demonstrate an increased severity
of PTSD from the period prior to April 24, 2003.
Thus, there is no competent evidence demonstrating that an
increase in disability was factually ascertainable at any
pertinent time prior to April 24, 2003. The veteran's claim
for the increase was received on March 5, 2004, and all
earlier claims for an increased PTSD disability rating were
closed by that time. Therefore, in this instance, the
effective date of the assignment of a 70 percent disability
rating for PTSD may not be earlier than April 24, 2003. 38
U.S.C.A. § 5110; 38 C.F.R. § 3.400. Accordingly, entitlement
to an effective date prior to April 24, 2003 for the
assignment of a 70 percent disability rating for PTSD must be
denied.
The Board finds that an earlier effective date for the 70
percent disability rating for PTSD is not warranted.
ORDER
The appeal is denied.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs